Hira Lal Vs. Emperors - Court Judgment

LegalCrystal Citation

legalcrystal.com/478644

Court

Allahabad

Decided On

May-21-1924

Judge

Boys, J.

Reported in

AIR1924All765; 82Ind.Cas.172

Appellant

Hira Lal

Respondent

Emperors

Excerpt:.....behaviour for any period up to three years, as something very much more serious than a substantive sentence of fine of, perhaps rs. 200. in this connection one may notice that an appeal always has been given to the district magistrate against an order of a magistrate demanding security for good behaviour, and now the right to appeal against an order for security for good behaviour and also an order for security for keeping the peace has been still further extended. there is, therefore, nothing whatever unnatural or unreasonable in giving a right of appeal to a person who under section 562 has to file a bond both for good behaviour and for keeping the peace......the refusal being based on section 414 of the criminal procedure code which he held barred the right of appeal. 2. section 408 gives an appeal from the order of a magistrate of the first class to the sessions judge. section 410 gives an appeal from the sessions judge to the high court. if these two sections are uncontrolled there can be no question that an appeal lies under them from orders under section 562 by a magistrate or by the sessions judge respectively.3. the case for the crown here is that as there was a summary trial an appeal is barred by section 414; the argument being that as there is no sentence at all it must be held to be a sentence less than the maximum which is referred to in section 414.4. to support the exclusion of a right of appeal, it will have to be argued.....

Judgment:

Boys, J.

1. This is an application in revision against an order of the Sessions Judge refusing to hear the appeal of one Hira Lal against whom an order in a summary trial has been passed under Section 562 of the Criminal Procedure Code, the refusal being based on Section 414 of the Criminal Procedure Code which he held barred the right of appeal.

2. Section 408 gives an appeal from the order of a Magistrate of the First Class to the Sessions Judge. Section 410 gives an appeal from the Sessions Judge to the High Court. If these two sections are uncontrolled there can be no question that an appeal lies under them from orders under Section 562 by a Magistrate or by the Sessions Judge respectively.

3. The case for the Crown here is that as there was a summary trial an appeal is barred by Section 414; the argument being that as there is no sentence at all it must be held to be a sentence less than the maximum which is referred to in Section 414.

4. To support the exclusion of a right of appeal, it will have to be argued that 'no sentence' is 'a sentence of less than a certain maximum'. I find it impossible to hold that this is a permissible meaning to give to the language used. It is only necessary to read Section 414 to realise instantly on coming to the words 'passes a sentence' that here there was no 'sentence'. It has not been suggested here that an order under Section 562 amounts to a ! sentence. It clearly does not do so and in this connection reference may be made to the words in Section 380 'pass such sentence or make such order'. This, to my mind, is really sufficient to conclude the question. The learned Sessions Judge says: 'Section 414 provides that notwithstanding anything hereinbefore contained there shall be no appeal by a convicted person in any case tried summarily, in which a Magistrate empowered to act under Section 260, passes a sentence of fine not exceeding 200 rupees only.' This is a perfectly correct statement of what Section 414 provides, namely, that there shall be no appeal in certain cases. It does not say anything at all about whether there shall or shall not be an appeal in other cases but the learned Judge continues: 'By this section an appeal is allowed only in cases in which the Magistrate empowered to act under Section 260, Criminal Procedure Code, imposes a fine exceeding 200 rupees or passes a sentence of imprisonment'. It is this latter paraphrase of the section that, he has misdirected himself. The section says in what cases there shall be no appeal. It does not say in what cases there shall be an appeal and it is by paraphrasing it in this way that he suggests the inference that there shall be no appeal in other cases and in this way has led himself to the conclusion that the section says what it does not say that there shall be no appeal where there is no sentence at all.

5. There are one or two further points that I may mention. It is asked why should the Legislature have taken away any right of appeal when there is a definite sentence, certainly a fine and possibly a sentence of imprisonment, and yet have allowed a right of appeal when no sentence was passed. An explanation readily suggests itself. It is quite conceivable that many persons would regard an order of release under Section 562 of the Code of Criminal Procedure, coupled with having to enter into a bond to keep the peace and to be of good behaviour for any period up to three years, as something very much more serious than a substantive sentence of fine of, perhaps Rs. 10 or even Rs. 200. In this connection one may notice that an appeal always has been given to the District Magistrate against an order of a Magistrate demanding security for good behaviour, and now the right to appeal against an order for security for good behaviour and also an order for security for keeping the peace has been still further Extended. There is, therefore, nothing Whatever unnatural or unreasonable in giving a right of appeal to a person who under Section 562 has to file a bond both for good behaviour and for keeping the peace. Again, there can be no particular significance in the fact that this was a summary trial. If there is anything in this argument for the exclusion of the right of appeal, that exclusion will be effected just as surely by Section 413 whether the trial was summary or not as by anything in Section 414 and we may, therefore, take it that anything which is authority for the proposition that Section 414 excludes a right of appeal is equally authority in reference to Section 413.

6. Again, if the argument for the Crown be accepted that a right of appeal is excluded by Sections 413 and 414, then the whole right of appeal given by Sections 408 and 410, under ordinary circumstances, goes clean out of the Statute Book. If that be so, then what is the meaning of the words in Section 562, Clause (3) 'the High Court may, on appeal, when there is a right of appeal to such Court' To suggest that there never is a right of appeal is to make nonsense of that clause. Section 562, Clause (3), only happens to make mention of a right of appeal because it is considered desirable to give the High Court a power of what practically amounts to an enhancement when hearing the appeal. But in whatever connection the mention may be made of a right of appeal, it is a certain indication that such a right must exist. If then there is a right of appeal to the High Court from an order under Section 562 made by a Sessions Court, there is no logic in suggesting that there is not a similar right of appeal to the Sessions Court from an order of a Magistrate.

7. The order of the Court is that the order of the Sessions Judge, dated the 14th of March 1924, dismissing the appeal is set aside and he is directed to re-admit it and hear it in accordance with law.